Opinion
Case No. A2-97-162.
April 14, 1999.
MEMORANDUM AND ORDER
I. INTRODUCTION
Before the Court is defendants' amended contested bill of costs and disbursements, (docket # 27), which defendants request the Court deem as a motion for taxation of disputed costs pursuant to Local Rule 7.1. In a document entitled "Amended Itemized Summary of Requested Attorneys' Fees and Costs," which the Court construes as a brief in support of motion, defendants assert that the terms of a lease agreement between "Uniband, Inc.," and "Sun Microsystems Finance, A Sun Microsystems, Inc. Business" establishes defendants' right to recover attorneys' fees, costs and disbursements in this action, "including costs that are usually not recoverable under Federal Rule of Civil Procedure 54," by "virtue of the law of subrogation." See Ex. 1 to Def. Am. Bill of Costs; and Def. Am. Itemized Summ. at 1-3. Plaintiffs respond that attorneys' fees are not properly taxable as costs and, in any event, are not recoverable in this case as the application was not timely made. See Pl. Obj. to Defs.' Bill of Costs at 1-4.
II. DISCUSSION
The Court rejects defendants' argument that any right of indemnity which may arise out of the referred to lease agreement between Uniband and Sun Microsystems creates an entitlement in defendants here to non-statutory costs or attorneys' fees in this action. There is simply no privity between Allstate and Sun Microsystems with regard to the contract which it is asserted creates a right to recover attorney fees and other costs not usually recoverable under Federal Rule of Civil Procedure 54.
Defendants, as prevailing party, may recover costs as provided by statute and the Federal Rules of Civil Procedure. Pershern v. Fiatallis North America, Inc., 834 F.2d 136, 140 (8th Cir. 1987) (citing 28 U.S.C. § 1920; Fed.R.Civ.P. 54(d)). Section 1920 defines expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d). Id.; see also Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir. 1997) (instructing that § 1920 defines the term "costs" as it is used in Rule 54(d)). However, not all expenses of litigation are costs taxable against the losing party. Pershern, 834 F.2d at 140. Within the statutory framework of costs eligible to be taxed, the district court has discretion in determining and awarding costs in a given case. Id.; see also Greaser v. Missouri, 145 F.3d 979, 985 (8th Cir. 1998) (district court has substantial discretion in awarding costs to a prevailing party).
Copying costs are authorized under § 1920(4). E.g., Weeks, 126 F.3d at 945. The Court will award costs for copying expenses in the total amount of $267.82, notwithstanding that defendants' request was not timely made. None of the other expenses itemized by defendants, (e.g., postage, telephone, fax), are recoverable under § 1920. Nor are attorneys' fees "costs" recoverable under § 1920.
Pursuant to Local Rule 54.1(A), a statement of controverted costs must be filed with the Court within 20 days after notice of the entry of a judgment. Notice of Entry of Judgment in this case was docketed September 22, 1998. Defendants' initial controverted bill of costs was not filed until October 19, 1998, 27 days after notice of entry of judgment. This is not timely even upon allowance for additional time after service by mail pursuant to Federal Rule of Civil Procedure 6(e).
With regard to an award of attorneys' fees, this Court is obligated to follow the traditional "American rule" that the prevailing party in federal litigation may not ordinarily recover attorney's fees in the absence of express statutory authorization.Obin v. District No. 9 of the Int'l Ass'n of Machinists and Aerospace Workers, 651 F.2d 574, 576 (8th Cir. 1981). Defendants have not presented any statutory authority to support their request. There are exceptions to the American rule when the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons," but the Court finds the exceptions inapplicable here. See id. Defendants' request for attorneys' fees is rejected.
Pursuant to Local Rule 54.1(C), a motion for attorneys' fees should be filed within 14 days after entry of the judgment. Even construing defendants' initial controverted bill of costs as a motion for attorneys' fees, such motion was not timely made. Notwithstanding, the Court does not base its decision on this ground.
III. SUMMARY
In summary, defendants' motion for taxation of disputed costs, (docket # 27), is GRANTED IN PART and costs are hereby ORDERED taxed against the plaintiff in the total amount of $267.82, which sum shall be inserted on the judgment entered September 22, 1998. The balance of the request is DENIED.
IT IS SO ORDERED.
RODNEY S. WEBB, CHIEF JUDGE UNITED STATES DISTRICT COURT